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INSUEGENT RELATIONS AND INSURGENT ANIMUS. 



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PRESIDENT'S MESSAGE, 



Delivered in Cominittee of the Whole on the State of the Union, 
January 19, 1866. 



Being in the (Jommittee of the Whole ou the state of the Union, MR. DEMING rose 
and said — 

Mr. Chairmak, I propose to submit some remarks to the committee pertinent to that 
paragraph of the President's message wherein he wisely refers to the House the question 
of the readmission of members from the insurrectionary district, and I submit them now 
because they will serve to vindicate votes upon questions of this nature which we have 
already passed upon when no opportunity for explanation was afforded, and because, 
also, they will vindicate the opinions which will guide me when similar cases shall here- 
after be presented. I had hoped, in reply to the resolution offered by my colleague, 
[Mr. Braudegee,] that we should have been furnished ere this with copies of the laws and 
ordinances which have recently been enacted by popular conventions and provisional 
legislatures in the enemy's country, that our judgments might have been enlightened 
upon the important part of reconstruction which has been graciously submitted to the 
wisdom of Congress. 

In the absence, however, of such valuable aid, I must govern myself by the principles 
which have hitherto uniformly guided the executive department in administering the 
reclamations of its sword, and by such sifted and uninflamatory facts as the powers that 
be, with a considerate regard for the public health, permit to dribble out from official 
channels of intelligence. 

If we had been engaged in a war with England for the last four years, the legal effect 
and liabilities of such a conflict upon the two parties would have been clear and unmis- 
takable" for the legal relations of two nations belligerent to each other, as well as the 
legal relations of their respective. inhabitants, are as fully and accurately defined by the 
law of nations as the relations of landlord and tenant or grantor and grantee are by the 
municipal law. 

As respects the nations, a war instantly annuls the most solemn compacts and treaties, 
and destroys all the claims of one belligerent upon another, except those which may be 
sanctioned by a treaty of peace. As respects the citizens of the two nations, it instantly 
converts all of them into a state of enmitj' to each other in utter contempt even of their 
own animus or predilections ; so that in the ca«e supposed — a war with England — Cob- 
den, were he alive, and John Bright and John Stuart Mill and Thomas Hughes, however 




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much they might oppose the war, and howerer amicable theywere to this country, would 
be, in the eye of thu law, our enemies just as much as the cabinet ministers who advised 
it, and the generals, admirals, soldiers, and sailors who were carrying it on. The first 
blast of war would immediately render unlawful all intercourse, commercial or other- 
wise, between the people of the two countries. Contracts which were in existence at the 
commencement of the war would be suspended, and those entered into during its con- 
tinuance void. The insurance of enemies' property, the drawing of bills of exchange or 
purchase on the enemy's country, the remission of bills or money to it would be illegal 
and null. Existing partnerships between the citizens and subjects would be dissolved, 
and all trade and intercourse, direct or indirect, would be completely and absolutely 
interdicted by the mere force and effect of the war itself. All the property of the people 
of the two countries on land and sea would be liable to confiscation and capture, with 
certain qualifications as to property on laud, and all debts interchangeably due would 
be liable to forfeiture at the discretion of the respective Governments. (Judge Nelson in 
Prize case, 2 Black.) 

Now, there is one fact which, in all the fog and bewilderment which surrounds present 
issues, looms out in prominent and startling relief. "We have been for the last four 
years "in a state of war ;" not, it is true, against any foreign nation, but against cer- 
tain States which once owed allegiance to this Government and afterward confederated 
together for its destruction ; and the existence of this "state of war," with a full linowl- 
edge of the legal meaning of that phrase, and of the legal consequences which attach to 
that state, has been repeatedly recognized both by the legitimate and revolutionary gov- 
ernments, and by all their departments ; by the two executives, in levying and marshaling 
armies, and hurling them together with all the implements and agencies of destruction ; 
by establishing a blockade and issuing letters-of-marque by virtue, and by virtue only, 
of a cessation of peaceful relations ; by both Cougresses in solemn and deliberate enact- 
ment tantamount to declarations of war, as by the act of confederate congress, at Mont- 
gomery, of May 6, 18G1, entitled " An act recognizing a state of war," as by the act of 
this Congress of July 13, 1861, generally known as the non-intercourse act; recognized 
by the full play and operation, with all their machinery for confiscation and forfeiture, 
of the courts of prize, in abeyance during peace and only liberated and set in motion by 
the inexorable necessities of war ; recognized by foreign nations, which have conceded 
full belligerent rights to each party to the contest; recognized, finally, by the highest 
arbiter of conflict between the St^te and Federal authority known to our system, the 
Supreme Court cf the United States, which, by the voice of all its judges, has unanimously 
declared that from the 13th day of July, 1861, "a civil territorial war has existed be- 
tween the United States and the confederate States." And this war, the same august 
tribunal declares, commenced in no tumultuous and unorganized insurrection, but was 
organized bj' body-politics calling themselves States, claiming to be sovereign over all 
persons and property within their respective limits, and asserting a right to absolve their 
citizens from their allegiance to the Federal Government. As States they seized national 
forts, arsenals, custom-houses, navy-yards, post ofiSces within their boundaries ; as 
States they extinguished every Pharos upon their coasts ; as States they raised armies, 
levied taxes, loaned their credit, and issued bonds for supporting the war ; as States 
they adopted a new constitution and confederated together into a hostile government, 
claiming to be sovereign and independent, and waged, to sustain the claim, and secure 
its recognition by the world, a war so vast in its proportions, so terrible in its destruc- 
tion of life, so appalling in its barbarities, so damnable in the monstrous horrors which 



it conceived and executed, that all the nations from "China to Peru" stand aghast, aa 
crash after crash of such awful thunder reaches their affrighted ears. Now, how does 
this war, in such frightful terrors clad, and so notorious, organized by States claiming 
to be sovereign, and waged by those States united into a government claiming to be 
independent, differ from a foreign war in the belligerent rights which it i)esto\vs upon us 
and in the legal consequences which it entails upon our enemies? It diiiers but in one 
essential particular. A civil war, as absolutely as a war inter yenles, confers upon the 
parties to it full belligerent rights and the corresponduig liabilities of a perfect war. 

Need I, to substantiate this position, appeal to those great public jurists whose 
weighty maxims are the imperial rescripts of the international code? Need I summon 
here Grotius, himself a refugee from civil war, the founder of these imperishable statutes, 
which, as by an elemental force, hold warring nations from rushing madly from their 
spheres into the chaos and darkness of utter barbarism, to say — 

" That a civil war between members of the same society is a mi.xed war, public on the 
side of the Government, but private on the part of the people resisting authority ; yet 
such a war entitles both belligerent parties to full belligerent rights." 

Need I summon one to whom public law is scarcely less indebted, but who wrote a 
century later, that Vattel may reiterate with more precision that — 

" A civil war breaks tlie bands of society and government, or at least suspends their 
force and effect ; it produces in the nation two independent parties, who consider each 
other as enemies, and acknowledge no common judge. These two parties, therefore, 
must necessarily be considered as constituting, at least for a time, two distinct 
societies." 

Need I appeal to Riquelme, who declares that — 

" When a part of the State takes up arms against the Government, if it is sufficiently 
strong to resist its action, and to constitute two parties of equally balanced forces, the 
existence of civil war is thenceforward determined. If the conspirators against the Gov- 
ernment liave not the means of assuming this position, their movement does not pass 
beyond a reliellion. As true civil war breaks the bonds of society, by dividing it in 
fact into two independent societies, it is for this consideration that we treat of it in inter- 
national law, since each party forming as it were a separate nation, both should be 
regarded as subject to the laws of war. This subjection to the law of nations is the 
m^ jjgfet iecessary in civil wars, since these, by nourishing more hatred and resentments 
th^itoreign wars, require more the corrective of the law of nations in order to moderate 
their ravages." 

Need I call upon Bello, who says : 

" When a fiiction is formed in a State, which takes up arms against the sovceign, in 
order to wrest from him the supreme power, or impose coiidiiiuuson him; or when a re- 
public is divided into two parties which mutually treat each other as enemies, this war is 
called a civil war, which means war between fellow-citizens. Civil wars frequently 
commence by popular tumults which in nowise concern foreign nations; but when one 
faction or party obtains dominion over an extensive territory, gives laws to it, estab- 
lishes a government in it, administers justice, and, in a word, exercises acts of sover- 
eignty, it is a person in the law of nations; and the foreign powers which desire to 
maintain their neutrality ought to consider both as two States, independent as respects 
one another and other Stales, and who recognize no judge of their diil'ereuces." 

Or, in order to define more precisely the great and pervading change which has been 
produced in the relation of the insurgent States and of all their citizens to this Govern- 
ment by the war which they have waged, need I quote the decision of the Supreme 
Court in the memorable prize cases, where, upon a point raised, it is expressly affirmed 
that all within the hostile territory "are public enemies and liable to be treated aa 
such;" that the United States may exercise full belligerent rights, and that to the an- 
tagonist party all the legal liabilities and consequenccji of war necessarily attach ; the 
sole element of distinction, according to the court, between the legal eflects of a civil war 



and the lefrnl effects of a foreign Tvar, being, that in the former the party claiming to be 
eovereign may exercise full belligerent as well as soTereign rights? Or need I, finally, 
to corroborate this position, cite the uniform action of the executire department, which, 
since hostilities commenced, has pursued the enemy with invasion, blockades, armies, 
fleeTs, sequestration, conscription, military commission, courts-martial, by virtue of its 
claim to full belligerent rights; which has received from them flags of truce, granted to 
them paroles, passports* and safe-conducts, and negotiated terms for a general surrender 
in deference to their possession of belligerent rights ; and which, since their military 
power has been broken, has ruled them by military governors, dictated conditions of 
permanent peace, superseded laws and municipal elections, suspended Governors elected 
by themselves, arrested the judgments of their local courts, and administered their local 
affairs in a thousand ways which would be utterly without justification unless it was 
abundantly justified by the laws of war, and without vindication under the Constitu- 
tion, unless it was abundantly vindicated by that construction of it for which I am here 
contending? 

Now, if I am right in the position which I have assumed, that the "civil territorial 
war" in which we have been involved differs in none of its legal effects (except in the 
particular which I have indicated) from a foreign war, then we are able to define with 
precise accuracy the legal relation of the insurgent States and' their citizens to this Gov- 
ernment since they first appealed to wager of battle. 

Up to the time their military power was broken by the nniversal surrender of their 
armies and the universal trailing of their unhonored flag, the States were hostile States, 
and their citizens "public enemies," with belligerent rights and belligerent lights only, 
entitled to claim no benefit from laws or Constitution, whether that Constitution be 
called a compact, a treaty, or a covenant, or whether the parties to it were States in their 
sovereign capacity, or the people of the United States as individuals. And since the 
surrender the legal relation both of the States and individuals has been that of vanquished 
enemies, with their lives, property, and political system absolutely at the mercy of the 
conqueror. 

Having thus tried these States by the accredited maxims of public law for the purpose 
of ascertaining their precise legal relations to the Government they have conspired to 
destroy, I was intending here to apply to the insurgent eleven the touch-stone of the 
Constitution, and see what powers it confers upon States as States, what rights it secures 
to States as States, and what duties and obligations it enjoins as essential, inevitable, 
and necessary equivalents upon States as States, for the purpose of deducing the com- 
forting conclusion that a State under the Constitution has no rights, and can exercise no 
jiower which discharges no duty and spurns every obligation. But this proposition has 
bc(n so ably discussed by the gentleman from Ohio [Mr. Shellabarger] that I am willing 
to leave the dogma, that organized rebellions are States, just where he left it, sprawling 
and writhing under the blows of such a battle-ax as Cccur de Lion dropped on the head 
of the infidel. 

Mu. Eldridge. Will the gentleman allow me to ask him a question at this point? 

Mr. Deming. I would inform the gentleman from Wisconsin that 1 have not so tho- 
roughly got the hang of this school-house at present that I can consent to interruptions. 
As I am speaking without notes or brief, I tell him frankly that I cannot have my con- 
catenation disturbed by interrni)tion3. [Laughter.] 

Although this is the theory which I have uniformly maintained here and elsewhere 
respecting the nature of this rebellion, and although I do not believe that these van- 



quished enemies and "organized rebellions" have any reason for claiming that mitiga- 
tion of the extreme rights of war which are accorded by modern usage to those who 
think they are waging a just war, yet I deprecate and most emphatically disclaim any 
desire or purpose to apply to their case the striclissmmm jus or rigid rule of international 
law. 

But I do intend fairly, squarely, and firmly to plant myself, in deciding the momen. 
tous issues before us, upon the mil ier interpretation of the rights of conquest, con- 
ceded now by every publicist and vindicated by all the wars of history, that we have 
the right, as victors, to impose any terms upon the vanquished which are necessary for 
the future security of the Republic and for enforcing and redeeming all the pledges of 
public faith which the Government has given as the price of victory. I shall insist that 
"organized rebellions," called bj' courtesy "States," shall not resume their former 
rights without " irreversible guaranties " to nationul security and national honor. I 
shall insist that we have the right, both as victors on the one hand and as legislators on 
the other, to exclade thtm from the Congress of the United States until the repetition of 
the secession experiment is placed beyond a peradventure, and no vote from any of these 
vanquished enemies shall, by my consent, endanger the public faith until that precious 
jewel is imbedded in the imperishable buttresses of the Constitution. 

I am now prepared to declare with precision, but with brevity, what the national 
security and public faith, in my judgment, require as conditions precedent to the read- 
mission to the public councils of " public enemies " from States who for more than four 
years have deliberately divested themselves of every legal idea of a State as defined by 
public law, and of all the elements of a State which the Constitution of the United 
States enjoins them to possess and maintain. 

It requires, first, that the Government shall be absolutely protected from a repetitioa 
of the secession experiment by a provision in our organic law ; second, that the freed- 
men shall be secured an absolute equality with the white man before the civil and crim- 
inal law, and shall be endowed with every political right necessary to maintain that 
equality ; third, that the public creditor shall be protected, as completely as organic law 
can protect him, from any repudiation or scaling down of the public debt; fourth, that 
the citizens, both of the rebel and loyal States, shall be protected, as completely as 
organic law can protect them, from any taxation, direct or indirect, for the payment of 
the rebel debt ; and unless the equality of the freedmen before both civil and criminal 
law can be fortified by legislation here, under the second clause of the amendment to 
the Constitution, giving universal freedom to the slave, we shall require, fith, an 
amendment similar to that introduced by my distinguished friend from Ohio, [Air. 
Bingham,] — 

" That Congress shall have power to make all laws necessary and proper to secure to 
all persons in every State equal protection in their rights of life, libertj', and property." 

Much more than this we might rightfully demand ; much more than this we might 
reasonably claim ; but not a jot less can we fail to secure as conditions precedent to the 
readmission of these "public enemies" to the public councils without being guilty of 
treachery to the living, to the dead, and to those who are yet to be. 

Having thus defined the relation of these insurgent States to the Government according 
to public law and the Constitution, and indicated the "irreversible guaranties" which 
are required, 1 wish to address myself for a moment to,the spirit, temper, onmws of these 
" public enemies " at the present time, and to ask what security have we that the indis- 
pensible prerequisites of national safety and national faith which I have enumerated 



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would not be exposed to imminent peril by the presence here of the Eepresentatives of 
those men who, when the grass on these surrounding hills, -which is now but just with- 
ered, wiis but just green, were pursuing us with the sword, with the fire-brand, with 
pestilence, massacre, and slow starvation, and on that wild and awful ni^ht in the 
kalends of April — but I forbear; the wedding follows so close upon the funeral that 

" The funeral baked meats 
Jlight coldly furnish forth the marriage tables." 

We are here, in the full gaze of the nation and the civilized world, charged with the 
future grandeur and renown of the Republic. We are here fairly coining and molding 
the rising eras and ages of a continent. We are here attempting to save an empire from 
being mortally W'ounded by that ball which has hardly yet spent its force, and which 
these new converts sped at its head when in their now regenerate bosoms burned all the 
concentrated flames of hell. We are here, having just rescued the Government from 
death on the field of honor, attempting to save it from the death of infamy which would 
follow its perfidy to the freedman who fought its battles and to the creditor who pur- 
chased its bonds. And when here, under such oppressive responsibilities to the present 
and the future, to the living and the dead, we ask, earnestly ask, like tortured Ajax 
begging for light, what proof — strong, convincing, overwhelming, as the enormous 
improbability of the supposition requires — do you present that these red-handed rebels 
can safely participate with us in launching the now enfranchised Republic on its dazzling 
orbit of justice, probity, and freedom, we are forthwith answered by a flux of glittering 
generalities, which are no more proofs of loyalty than the dogged submission of the 
assassin Payne to his fate was proof of loyalty. "They accept the situation ;" so did 
Payne. " They submit to necessity ;" so did Payne. "The aspect of affairs is more 
promising than could have been expected;" so it was in Payne's case — it was supposed 
he would kick and bite the executioner. "An abiding faith is entertained that their 
actions will conform to their professions;" that must be faith like TertuUian's, who said, 
" Credo quia impossibile est." 

I see by the northern papers that some reverend gentlemen have been transcendently 
weak enough to bless God " for having converted the Bouthern heart to loyalty." If 
this be so, St. Paul's conversion was rather a tame affair. If it be true that these fire- 
eating, blood-thirsty Southrons, whose untamed insubordination, whose furious and vin- 
dictive passions, were the proverb and shame of our jiast, have been suddenly bora 
again, then the day of Pentecost met with an eclipse which amounts to a total obscura- 
tion, and the epistles of Andrew have worked a greater miracle than the preaching of 
Peter. 

Why, Mr. Chairman, we all know that hypocrisy is not one of the vices of 
southern character. There is no loyalty there which would support what I regard, or 
what the least exacting Union man should regard, as indispensable to the present and 
future safety of this imperriled nation. That most accute and patient observer of the 
southern animus, General Carl Shurz, commissioned by the President to examine this 
very question, in the condensed essence and summing up of his most valuable report 
says ; 

" The loyalty of the masses and most of the le.'idprs of the southern people, consists in 
submission to necessity. There is. except in indiviiinal instances, an entire absence of 
that national spirit which forms the liasis of true loyalty and patriotism. 

" The emancipation of the slaves is submitted to only in so far as chattel slavery in 
the old forni could not he ke[)t ut). But altliousrh the fieedman is no longer considered 
the property of the individual master, he is considered the slave of society, and all iude- 



pendent State legislation will share the tendency to make him such. The ordinances 
abolishing slavery passed by the conventions under the pressure of circumstances, will 
not be looked upon as barring the establishment of a new form of servitude." 

This is the final exhibit of the keen observer deputed by the President to examine upon 
the spot the condition of the insurgent States. 

Sir, their conversion consists in bowing their still stubborn necks to a power which 
they could no longer withstand, and the instrument of it was the sword of Ulysses. 
Their penitence consists in discovering that they have committed a blunder. 

When the Administration of Abraham Lincoln was inaugurated two alternatives were 
before them. They could have staid here, fighting the Government fiom the inside as 
they had done for the last thirty years, and while warmed in its too gentle and forbear- 
ing bosom, marking it for slaughter and measuring it for the grave. They could have 
gone out and attempted an assault upon it from the outside. They chose the latter. 
They raised their bloody hands in rebellion ; and had no sooner done so than they 
found themselves confronted with the most puissant military Power which the world has 
ever seen when begirt for war, and when it had summoned its children for battle. 

They went down with their short-lived banner in the dust of humiliation and defent. 
And if there is any truth in this inspection of the southern animus, which has been laid 
before the country, they are, like a wily and discomfited enemy, watching the chance to 
steal back and adopt the other alternative, and strangle the Government here in the very 
sanctuary of its power and majesty. "0! doubter and gainsayer," I hear some ardent 
friend of readmission ask, "Have they not repealed the secession ordinances ? Have 
they not adopted the amendment to the Constitution and repudiated the rebel debt?" 
0, yes, with a command of countenance and solemnity of visage which, under the cir- 
cumstances, is truly marvelous, they have told all the beads, repeated all the avcs, and 
pattered all the prayers enjoined upon them as a condition of absolution, but it is within 
the limits of possibility that they have done all this to purchase unlimited indulgence to 
sin ; and not to be invidious in comparisons, I am told that Italian brigands are never 
so devout in kneelings, crossings, and pater-nosters as when they are about to plunge 
afresh into crime. 

They have ratified the amendment to the Constitution, have they ? But how have 
they ratified it? With a construction and gloss upon it which is more trumpct-tongued 
proof of their perennial perfidy to the black race than all the hypocritical mouthings of 
acquiescence in emancipation which could be collected in a six-month's hunt from Rich, 
mond to the Rio Grande. They have ratified it with a construction that it merely abol- 
ishes the infamy of buying, selling, and owning human beings ; and under the excep- 
tional clause ("except as a punishment for crime") reconstructed North Carolina is now 
selling black men into slavery for petty larceny, and reconstructed South Carolina, Mis- 
sissippi, and Louisiana, are fettering the contract system with so many subtle formalities, 
forfeitures, and conditions, that a modern labor contract is much like an old-fashioned 
slave-pen — a trap to hold the freedman to his work and cheat him of his wages. It is 
also true that in equivocal and guarded language they have repealed the secession ordi- 
nance and repudiated the rebel debt. But who can have faith in a generation of vipers? 
The next Legislature may re-enact secession and reafiirm the debt, and I am determined 
for one to accept no bonds for their good behavior which they are at liberty either to 
cancel or steal. But the oaths ! the oaths ! They have sworn oaths to be faithful to 
the Constitution and to support the laws. Yes, my friend, they have piled Pelion upon 
Ossa in the shape of oaths ; but, alas 1 they have taken all these oaths before, and on the 



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013 785 53^""- 

top of them taken perjury upon their souls; ana iiiosu n^^ ^ ured 

Senators and Representatives, their perjured officers, military, naval, and civil, their per- 
jured judges, and Iheir perjured curs of low degree, rushing from the Bible which they 
had kissed to the rebel congress and the confederate camp, will require more "irreversi- 
ble guaranties" from the returning prodigals than those which end with "so help me 
God !" Confidence is said to be a plant of slow growth, and if there is any kind of con- 
fidence which should be longer than the American aloe in blossoming, it is confidence in 
any oath which these convicted oath-breakers can take. 

I have pursued this investigation thus far into the animus of the inhabitants of the 
disfranchised States by the intuitions of common sense, with the expectation that this 
process would guide us at least to the conclusion that the burden of proof in this case 
rests most signally upon those who claim that they are ripe for our embrace and for the 
immediate readmission of their Representatives to this floor. I was intending next to 
adopt a more systematic method of inquiry with the hope of showing that the intuitions 
of common sense and the process of inductive investigation mutually fortify and vindi- 
cate the same general conclusions. I was intending to examine the southern animus as 
evinced, first, by their general, local, and municipal elections ; second, by the laws and 
ordinances which they have passed respecting the freedmen ; third, by the testimony of 
the special agent appointed by the President to investigate their loyalty ; fourth, by 
correspondence from the infected region ; and, fifth, by the statements of loyal citizens 
from the renovated States ; and I atBrm that from all these distinct and independent 
sources of information the evidence is complete and overwhelming that southern loyalty 
consists in submission to necessity, and that its implacable animosity to the Federal 
Government, and to those great measures which have been inaugurated for liberating 
and enfranchising the slave, is merely biding the time when, by the return to these Halls 
of its full complement of Senators and Representatives, the misfortunes of the field may 
be redeemed in the forum. But as the whole body of laws and ordinances have not yet 
reached us, the materials for an exhaustive examination are not yet complete, and I 
must defer to some future period of the debate the results of such an investigation. I 
can assure gentlemen that when the conclusions drawn from such an examination are 
brought to the intelligence and conscience of the North, no man can live who votes for 
the unconditional admission of these unregenerate and implacable foes to any prticipa- 
tion in our legislation here. I am thankful that my feeble voice has been permitted at 
this early day to sound the alarm. 

I have thus, Mr. Chairman, defined my view of the relation of these insurgent States, 
as determined by public law and by the Constitutioo, to this Government. I have indi- 
cated without vindicating the constitutional muniments which will be required to de- 
fend the cause we have won when " public enemies " shall be joined with us in execut- 
ing our sacred trust. I have searched in vain for the refreshing fount of patriotism 
which we are told has recently burst forth in those once desolate wastes. In doing thia 
I have stated some of the principles which will govern me in this momentous crisis of 
my country's history. Guided by them, I shall enter the dark and pretentous cloud 
which is still lowering before us without fear, with great hope, but with no certainty. 
Upon the God of nations and the invincible strength of northern freemen we must still 
rely to make our deliverance sure. 



Joseph Li. Pearfjou, Printer. 



LlBKHK'f Ol- ^"NbKti>^ 



013 785 633 5 



